FRANCISCO RODRIGO GARCIA, PETITIONER V. UNITED STATES OF AMERICA
No. 90-5612
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States In Opposition
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. B1-B7) is reported
at 905 F.2d 557. The magistrate's report and recommendation
concerning petitioner's motion to suppress evidence (Pet. App. A1-A6)
is not reported.
JURISDICTION
The judgment of the court of appeals was entered on June 19, 1990.
The petition for a writ of certiorari was filed on August 31, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether petitioner was subject to prosecution under the federal
narcotics laws for offenses arising out of his possession of cocaine
while travelling on an airplane flight that made a stop in Puerto Rico
while en route from Colombia to Spain.
2. Whether searches conducted by customs inspectors who discovered
cocaine in petitioner's luggage violated petitioner's rights under the
Fourth Amendment.
STATEMENT
After a jury trial in the United States District Court for the
District of Puerto Rico, petitioner was convicted of possessing
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1); importing cocaine into the Customs territory of the United
States from a place outside it, in violation of 21 U.S.C. 952(a); and
possessing cocaine on an aircraft arriving in the United States, in
violation of 21 U.S.C. 955. Petitioner was sentenced to concurrent
160-month prison terms on each count, to be followed by five-years'
supervised release. The court of appeals affirmed.
1. On December 13, 1988, an Iberia Airlines flight bound for Spain
from Colombia made a stop at the Luis Munoz Marin Airport in Puerto
Rico. In an in-transit lounge at that airport, federal customs
inspectors screening passengers for evidence of illegal drugs stopped
petitioner and asked to see his passport, boarding pass and airline
ticket. Although appellant's ticket indicated that he had checked
four pieces of luggage, appellant had only one claim sub and
maintained he was carrying only one suitcase. When customs agents
inspected in-transit luggage on the tarmac, they found a music
amplifier marked with a tag corresponding to appellant's claim ticket.
After smelling glue (a substance commonly used to confuse
drug-sniffing dogs), an inspector probed the amplifier and found
cocaine hidden inside. Customs inspectors also found cocaine in a
second amplifier bearing a claim ticket with a number consecutive to
the first one. Pet. App. B2-B3; Gov't C.A. Br. 2-6.
After discovering the cocaine, the customs inspectors arrested
petitioner and advised him of his rights. Among other things,
petitioner told the inspectors that he believed there were at least 21
kilograms of cocaine inside the two amplifiers; ultimately, the
amplifiers were determined to contain 20.78 kilograms of cocaine.
Pet. App. B3.
Before trial, petitoner moved to suppress the evidence discovered
during the search of his luggage and statements that he made to
customs inspectors. After a hearing, the motions were denied. See
Pet. App. A1-A6. The evidence and statements were subsequently
introduced at trial.
2. The court of appeals affirmed. Pet. App. B1-B7. The court
rejected petitioner's contention that there had been insufficient
justification for the search of his luggage, explaining that it is
"well settled that such in-transit searches are considered border
searches" and that the Customs Service "has the authority routinely to
search, without a warrant or suspicion, baggage and persons in-transit
from one foreign country to another." Pet. App. B4. The court added
that "the fact that (petitioner) did not know the plane would stop in
the United States is immaterial." Ibid. /1/
ARGUMENT
1. Petitioner contends that in-transit international passengers who
stop in this country are immune from prosecution under federal drug
statutes, asserting that they lack specific intent to commit drug
offenses in this country. Pet. 5-6.
Every federal court of appeals that has considered the issue has
held that federal narcotics laws are fully applicable to individuals
who carry drugs into the United States while smuggling them from one
foreign country to another. /2/ These decisions are well-founded.
None of the statutes under which petitioner was prosecuted is limited
to individuals who intend to distribute drugs in this country. With
respect to the offense of posssession of cocaine with intent to
distribute it, "(t)he actual possession on United States territory
supplies the jurisdictional nexus and obviates the need for proof of
intent to distribute within the United States." United States v.
Muench, 694 F.2d 28, 33 (2d Cir. 1982), cert. denied, 461 U.S. 908
(1983). Similarly, even if Spain was to have been the ultimate
destination of petitioner's cocaine, he knowingly possessed it while
he was aboard an airplane that arrived in the United States and thus
imported the cocaine into this country. No more was required for a
conviction under 21 U.S.C. 952(a) and 955. See United States v.
Mejia-Lozano, 829 F.2d 268, 271 (1st Cir. 1987); United States v.
Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988).
There is no merit to petitioner's suggestion (Pet. 5-6) that
international drug traffickers are immune from prosecution under
federal drug statutes unless it can be shown that they were aware that
an international flight would take them to the United States. Nothing
in the language of the statute requires that type of specific intent.
As the First Circuit held, in upholding the conviction of a defendant
who claimed to have been unaware that her flight would make a stop in
this country, "21 U.S.C. Section 952(a) does not require the sort of
specific intent that (the defendant) assumes. It is sufficient that
the defendant knowingly possessed the contraband, and brought it into
the jurisdiction of the United States." United States v. Mejia-Lozano,
829 F.2d at 271.
This reasoning is supported by decisions of this Court under
analogous federal statutes. In United States v. Feola, 420 U.S. 671
(1975), the Court held a defendant was properly convicted of
assaulting and conspiring to assault a federal officer (an undercover
DEA agent), even though the defendant was unaware at the time of the
offenses that his victim was a federal officer. Noting that an
individual who assaults someone "know from the very outset that his
planned course of conduct is wrongful," the Court concluded that the
"concept of criminal intent does not extend so far as to require that
the actor understand not only the nature of his act but also its
consequence for the choice of a judicial forum." Id. at 685.
Similarly, in United States v. Yermian, 468 U.S. 63, 68 (1984), the
Court rejected the contention that 18 U.S.C. 1001 requires proof that
a defendant was aware that a false statement involved a matter within
a federal agency's jurisdiction. /3/ So too here, the government
proved that petitioner knowingly possessed the drugs that he brought
into this country and intended to distribute them; it was not
necessary to show in addition that he also knew these actions would
subject him to prosecution in this country.
Recognition of the specific intent requirement that petitioner
advocates would violate the purpose of federal drug statutes.
Although those statutes were intended to combat the distribution of
drugs within this country, that is not their exclusive purpose. As
the Second Circuit explained in United States v. Muench, 694 F.2d at
32:
(T)he United States has by treaty obligated itself to cooperate
with other nations in the suppression of the international drug
trade. * * * The Congress has expressly declared that the drug
laws are in part intended to meet the United States' duties
under those treaties. See 21 U.S.C. 801(7), 801a. * * * It
would be absurd to ignore Congress' expressed intent and hold
that international drug dealers who make stopovers in the United
States are exempt from the U.S. drug laws as long as they do not
attempt to go through U.S. Customs. Nor do we believe that
Congress intended the public to bear the risk of violence that
is created by any transportation of illicit drugs, * * * or that
Congress was unaware of the possibility that drugs possessed
within the United States but outside its customs boundaries
might eventually be distributed within the country.
2. Petitioner also contends (Pet. 6-10) that the search of his
luggage by customs inspectors violated his rights under the Fourth
Amendment. In his view, the court of appeals erred in assessing the
legality of the search under standards governing border searches.
"(T)he Fourth Amendment's balance of reasonableness is
qualitatively different at the international border than at the
interior." United States v. Montoya de Hernandez, 473 U.S. 531, 538
(1985). In light of "longstanding concern for the protection of the
integrity of the border," a concern that "if anything, (has been)
heightened by the veritable national crisis in law enforcement caused
by smuggling of illicit narcotics," federal authorities are allowed to
conduct routine searches of persons and their effects at our Nation's
borders without probable cause, a warrant, or reasonable suspicion.
Ibid. The Fourth Amendment's reasonableness standard -- which governs
non-routine searches -- is also responsive to the fact that a search
occurs at the border. "(N)ot only is the expectation of privacy less
at the border than in the interior, * * * the Fourth Amendment balance
between the interests of the Government and the privacy right of the
individual is also struck more favorably to the Government at the
border." Id. at 539-540.
In a number of cases, the First Circuit has held that the Customs
Service's authority to search baggage arriving in the United States
extends to in-transit international passengers. See, e.g., United
States v. Levy, 870 F.2d 37 (1989); United States v. Mateos Sanchez,
864 F.2d 232 (1988); United States v. Papeleo, 853 F.2d 16 (1988);
United States v. McKenzie, 818 F.2d 115 (1987). To our knowledge, no
other court of appeals has recognized a distinction, for purposes of
the Fourth Amendment, between travellers who seek to enter the country
and those who are en route to a foreign destination.
The considerations underlying the Fourth Amendment standards
governing border searches are applicable to in-transit international
passengers. Individuals involved in international drug smuggling or
other criminal activity that brings them temporarily within our
borders threaten important national interests and thus trigger the
heightened federal interest in "the integrity of the border." United
States v. Montoya de Hernandez, 473 U.S. at 538. In-transit
passengers, aware that they will be called upon to pass international
borders on one or more occasions during their trips, also have a
diminished expectation of privacy. Thus, searches of in-transit
passengers should not be limited to cases in which authorities have
probable cause and obtain a warrant, and the Fourth Amendment's
reasonableness standard should be applied with due regard to the
unique concerns governing searches at a national border.
There can be no serious contention that the searches at issue in
this case were unreasonable -- given their border setting and the
facts known to customs inspectors. In Montoya de Hernandez, this
Court held that a person seeking to enter this country could be
detained for 16 hours on the basis of a reasonable suspicion that she
was carrying drugs in her alimentary canal. The searches in this case
were far less intrusive, and were justified by accumulating evidence
that petitioner was carrying contraband. A routine inspection of
petitioner's ticket, boarding pass, and baggage claim stubs revealed
that petitioner did not have three claim stubs corresponding to
baggage reflected on his ticket. Asked to provide an explanation,
petitioner claimed to be carrying only one suitcase. A surface
examination of the article corresponding to petitioner's claim stub,
however, revealed that it was an amplifier, not a suitcase. Moreover,
the amplifier was exuding a strong odor of a substance often used to
confuse drug sniffing dogs. At this point, the inspectors could
reasonably suspect that petitioner had misrepresented the amount and
nature of his luggage in order to conceal drug smuggling activity. A
limited probe of the amplifier revealed that it contained a large
quantity of cocaine. Petitioner's arrest and the search of the other
amplifier were then supported by probable cause. At each stage, the
customs inspectors' actions were consistent with the Fourth
Amendment's reasonableness standard as applied to intransit
international passengers. /4/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
SEAN CONNELLY
Attorney
OCTOBER 1990
/1/ The court also rejected petitioner's contentions that his
postarrest statements should have been suppressed (Pet. App. B4-B5);
that there was insufficient evidence that he knew of the cocaine
hidden within the amplifiers (id. at B5-B7); and that he was entitled
to credit, under the Sentencing Guidelines, for admitting
responsibility for his criminal conduct (id. at B7). The petition
does not seek further review of these issues.
/2/ United States v. Montoya, 782 F.2d 1554, 1555 (11th Cir. 1986);
United States v. Muench, 694 F.2d 28, 33 (2d Cir. 1982), cert.
denied, 461 U.S. 908 (1983); United States v. Gomez-Tostado, 597 F.2d
170 (9th Cir. 1979). The First Circuit, which has decided a large
number of cases involving drug traffickers stopping in Puerto Rico on
their way from Colombia or Jamaica to some other foreign country,
consistently has rejected arguments that would immunize these
international traffickers from federal prosecution. See, e.g., United
States v. Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988) (citing
cases). While a Fifth Circuit decision upholding the conviction of an
international trafficker who tried to pass through U.S. Customs
reserved the question whether a different result might be appropriate
for a "true in-transit passenger who is never brought under the
control of the customs authorities," United States v. Pentapati, 484
F.2d 450, 451 (5th Cir. 1973), no court has recognized such an
exemption from the drug laws.
/3/ The cases upon which petitioner relies (Pet. 5) held only that
due process requires proof beyond a reasonable doubt of every element
of an offense. Francis v. Franklin, 471 U.S. 307 (1985); Connecticut
v. Johnson, 460 U.S. 73 (1983); Sandstrom v. Montana, 442 U.S. 510
(1979). They have no relevance to the question presented by this case
-- which is whether knowledge that an international flight will stop
in the United States is an element of federal drug statutes.
/4/ Although the question presented in the petition raises only the
constitutional sufficiency of the search, petitioner also argues that
the customs inspectors lacked authority to search his baggage. Pet.
9. This contention is without merit. Under 19 U.S.C. 1496, the
Customs Service has authority to "cause an examination to be made of
the baggage of any person arriving in the United States in order to
ascertain what articles are contained therein and whether subject to
duty, free of duty, or prohibited notwithstanding a declaration and
entry therefor has been made" (emphasis added). In addition, 19
U.S.C. 1581(a) empowers customs officers to "board any vessel or any
vehicle at any place" in U.S. customs territory, to "search the vessel
or vehicle and every part thereof and any person, trunk, package, or
cargo on board." These provisions have long been interpreted to
authorize customs searches of in-transit passengers and baggage
stopping in the United States en route to another country. See United
States v. McKenzie, 818 F.2d 115, 119 (1st Cir. 1987) (citing Leiser
v. United States, 234 F.2d 648, 650 (1st Cir.), cert. denied, 352 U.S.
893 (1956)). In light of these statutes, petitioner's contention that
19 U.S.C. 1467 did not authorize the search "is beside the point."
United States v. Franchi-Forlando, 838 F.2d 585, 587 (1st Cir. 1988).